Supreme Court once again bases a high-profile ruling on ‘standing.’ What does it mean?

The Supreme Court is seen, Tuesday, June 25, 2024, in Washington.

The Supreme Court on Wednesday sided with the Biden administration in a case in which social media sites were accused of wrongly censoring posts about the COVID-19 pandemic.

But rather than base the ruling on the First Amendment’s free speech protections, the majority opinion centered on legal standing, which is the question of whether people who want to challenge a policy in court are actually suffering some harm as a result of it.

The justices in the 6-3 majority, including the court’s three liberals, said that the challengers in the social media case — the states of Missouri and Louisiana, and five individual social media users — do not have standing because they have not shown that they are suffering a concrete injury from the government’s alleged interference in the social media sites’ content moderation policies.

“The plaintiffs rely on allegations of past Government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to (federal officials’) communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms,” wrote Justice Amy Coney Barrett in the majority opinion.

The decision is the court’s second high-profile ruling in as many weeks to rely on standing.

The first came in the abortion pill case, and it was unanimous. The justices agreed that a group of doctors with moral concerns about abortion who don’t actually prescribe the pill or treat patients using it should not have been able to challenge the FDA’s guidelines for the use of mifepristone.

“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue,” wrote Justice Brett Kavanaugh for the court.

Murthy v. Missouri

The social media case originated during the height of the COVID-19 pandemic, as sites like Facebook cracked down on users who the sites felt were spreading misinformation.

The challengers included a health care activist, three doctors and the owner of a news website, who alleged that the Biden administration pulled strings behind the scenes to ensure that social media sites would block posts in which they complained about masks and vaccine mandates, among other pandemic-related restrictions.

The lower courts ruled in the challengers’ favor, deciding that the communication trail between social media sites and the government proves that federal officials really were influencing content moderation policies during the COVID-19 pandemic.

But now, the Supreme Court has overturned those decisions, ruling that the challengers have not effectively shown how conversations between the government and social media sites about COVID-19 and other sensitive topics directly led to their posts being banned or hidden.

For one thing, the challengers — and lower courts — did not pay enough attention to the fact that sites like Facebook and YouTube were banning COVID-19 misinformation before federal officials got involved, the majority opinion said.

“As early as January 2020, Facebook deleted posts it deemed false regarding ‘cures,’ ‘treatments,’ and the effect of ‘physical distancing,’” Barrett wrote. “Evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.”

What is legal standing?

Article III of the Constitution details what types of cases the federal court system should hear. It says that federal judges should only weigh in on executive actions “to redress or prevent actual or imminently threatened injury to persons caused by ... official violation of law,” the majority opinion explained.

It follows, then, that a person, group or state can only bring a federal lawsuit if they have been harmed by or will be harmed by an official action. And in past cases, the Supreme Court has made it clear that this harm can’t be broad or nonspecific — it has to be “concrete, particularized and actual or imminent” and “traceable” to the challenged government action.

The problem with the challengers in the social media case, according to the majority, is that they can’t clearly connect the dots between federal officials and an individual site’s decision to block or hide one of their specific posts.

“The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation,” the majority opinion said.

The case might have been stronger if it was focused on the social media sites’ actions, rather than on the government’s work with the social media sites, it said.

“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from ‘exercis(ing such) general legal oversight’ of the other branches of Government,” Barrett wrote.